U.S. President Barack Obama’s decision to detain 47 of the just-under 200
remaining prisoners at Guantánamo without trial indefinitely is drawing
scorn from legal experts and human rights advocates, who charge that the government
simply does not have enough evidence to convict the detainees it says cannot
be tried but are "too dangerous to release."

David Frakt is a lieutenant colonel in the U.S. Air Force Judge Advocate General
(JAG) Corps Reserve, associate professor, and director of the Criminal Law
Practice Center at Western State University College of Law in Fullerton, Calif.

He is a former lead counsel for the Office of Military Commissions Defense,
who successfully represented Mohammed Jawad before the military commissions
and won his release in habeas corpus litigation in 2009.

Frakt told IPS, "The administration’s suggestion that they can’t try
47 detainees, not because they don’t have evidence of criminal wrongdoing,
but because a criminal trial would necessarily involve disclosure of classified
information, defies common sense."

He gave three reasons.

"First, both under the Military Commissions Act of 2009 and under the
Classified Information Protection Act [CIPA], in use in federal courts, there
are elaborate mechanisms in place to protect classified information,"
Frakt said.

"Second, given that the remaining detainees at Guantanamo have been held,
on average, for over seven years, the likelihood that there is an ongoing need
to protect classified sources and methods in such cases is remote."

"Finally, it is hard to believe that there would be any greater risk
of revealing important classified information than in the 9/11 trial, yet the
administration is pressing forward with this and several other cases against
high-value detainees who were kept in secret CIA ghost prisons and subjected
to still classified methods of interrogation," he noted.

"The administration has acknowledged the right of all detainees to petition
for habeas corpus in federal court. Why does the administration seem
to believe classified information could be adequately protected in federal
habeas litigation, but not in a criminal trial? It seems far more likely
that there is simply inadequate admissible non-coerced evidence of criminality,"
Frakt said.

Other legal scholars have weighed in with similar views. For example, Brian
J. Foley, visiting associate professor at the Boston University School of Law,
told IPS, "Many of the executive’s claims about danger and terrorism have
been shown to be incorrect over the years."

"Last week’s incident where an plane bound from New York to Kentucky
was diverted for an emergency landing in Philadelphia because passengers freaked
out when they saw a Jewish teenager engaging in an Orthodox prayer ritual,
and the recent hours-long shutdown of Kennedy airport because a man from earthquake-ravaged
Haiti mistakenly opened an emergency door in a terminal, show that our officials
are overreacting and cowardly," he said.

"The executive’s claim that these people are ‘too difficult to prosecute’
really means that the executive knows that the only evidence it has is weak
or was obtained by coercion and is therefore very likely false," Foley
said.

The American Civil Liberties Union (ACLU), always a major player in the Guantanamo
detention issue, called the Obama policy "un-American."

Jonathan Hafetz, a senior ACLU lawyer, told IPS, "By committing to hold
suspected criminals indefinitely without charge, the Obama has embraced one
of the most lawless and un-American policies of the Bush administration, one
that turns the most fundamental principles of the Constitution on their head."

"The notion that the government can simply hold those it believes ‘dangerous,’
without putting them on trial, will ultimately serve neither our liberty nor
our security," he said.

And Chip Pitts, president of the Bill of Rights Defense Committee, asked,
"How is this any better than Guantanamo itself and the spur such approaches
give to al-Qaeda?"

He told IPS, "No legal system worthy of the name can possibly imprison
people indefinitely on the shameful argument that they are, in the absence
of evidence and a fair trial, ‘too dangerous to release.’"

He called the move a "significant calcification of the lawless Bush approach
of holding (often tortured) detainees indefinitely – effectively, perhaps
for life – until the conclusion of some endless ‘war on terror,’"
but said it is "actually undermining vital cooperation from European and
Muslim allies, support for the rule of law itself and our country’s national
standing and historical legacy."

In a statement, Amnesty International USA, said, "There’s been talk about
people who can’t be tried but who are too dangerous to release. This is absurd.
People must either be charged with a crime and given a fair trial, or be released.
End of story. That’s the way it works. Either there’s evidence against you
or there isn’t."

And Virginia Sloan, president of the widely respected Constitution Project,
said, "Even if the Obama administration continues to work to close Guantánamo,
by pursuing a policy of indefinite detention without charge, the damaging policies
that embody the prison will continue, as will the negative effects to American
values, the rule of law, and our nation’s reputation abroad." She urged
opposition to the use of military commissions.

The planned closing of the iconic prison facility on the island of Cuba has
been, at the same time, one of the Obama administration’s signature issues
and most serious embarrassments.

On his first day in office, the new president issued an executive order to
close the prison by January 2010. That deadline has now been missed, as Congress
refuses to accept detainees even for trial in U.S. civilian courts and countries
remain reluctant to accept them for resettlement.

For the past year, Justice Department lawyer Matthew G. Olsen has been leading
a task force of national security and law enforcement officials who have been
reviewing the files for each Gitmo detainee.

The review included an evaluation of any evidence against each man, how serious
the threat would be if the detainee were released, and the government chances
of prosecuting each prisoner successfully. The groups were then evaluated under
the direction of Attorney General Eric H. Holder Jr.

But the process does not provide all the answers. For example, about 30 of
the prisoners scheduled to be transferred to other countries are Yemenis. But
transfers to Yemen have been halted following the attempted bombing of a Detroit-bound
airliner on Christmas Day. It is believed that this plot was developed by a
Yemeni affiliate of al-Qaeda.

Holder is also charged with deciding whether those to be prosecuted should
face a civilian trial or a military commission. He has announced that five
detainees would face a military commission and five others – including Khalid
Sheikh Mohammed, the self-described mastermind of the terrorist attacks of
Sept. 11, 2001 – would be tried in civilian court.

It is unclear what criteria the government uses to decide between military
commissions and civilian courts.

Obama has demonstrated both during the campaign and in his first year in office that he has no guiding principles, no understanding of the constitution (despite being a "constitutional law professor", and is incapable of resisting pressure from powerful people who have an agenda.
He seems to be willing to just go with the flow.
He seems to accept the status quo, whatever it might be.
Healthcare notwithstanding, he seems afraid to really upset the apple cart.
The job of president takes nerves of steel, and he doesn't have what it takes . He may be a nice guy, but he is just not cut out for the job.

The case of the Yemeni prisoners is particularly "interesting". They are being held because they are Yemenis and there is suspicion that there is an active terrorist cell in Yemen. The equivalent would be that we have some Italian citizens here, have no grounds for custody or prosecution but we won't send them to Italy because there is an active Mafia there. This is third grade logic. What is really going on here is the complete, cowardly failure on the part of the US Government to admit it has made a huge, criminal mistake. Most, approaching all, of these detentions are kidnappings. Most were taken into custody only because there was a bounty offered for captives.
It is those who are responsible for this disgrace that should be behind bars awaiting trial and that starts with George W. Bush. Barak Obama is quickly joining in that responsibility and putting himself in criminal jeapordy.

How convenient than that this Nigerian kid decided to have himself dragged onto a US-bound plane supposedly to blow it up. Just as we were about to release Yemenis to Yemen.

The heart of the matter is of course that the ruling class are tired of playing democracy and have become tyrants who think they are beyond the law. The modern state where goverment is bound by law is a thing of the past. What we have is a bunch of warlords running Washington.

If the Democrats are wondering why they will be wiped out in future elections, look no further. They've adopted all the bad policies of Cheney and contributed only the very worst of extreme leftism. If the American people wanted Wolfowitz in the White House they would have elected McCain. Instead it turns out that behind the smiling African- American mask hides the demonic trio of Cheney/Addington/and that creep Yoo.

[…] “The administration has acknowledged the right of all detainees to petition for habeas corpus in federal court. Why does the administration seem to believe classified information could be adequately protected in federal habeas litigation, but not in a criminal trial? It seems far more likely that there is simply inadequate admissible non-coerced evidence of criminality,” Frakt said.” http://original.antiwar.com/fisher/2010/01/26/indefinite-detention-defies-common-sense/ […]